Citation Nr: 0727217
Decision Date: 08/30/07 Archive Date: 09/11/07
DOCKET NO. 06-03 504A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Irene Zaki, Associate Counsel
INTRODUCTION
The veteran had active service from October 1968 to October
1972.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) from an August 2005 rating decision of the
Department of Veterans Affairs (VA), Regional Office (RO) in
Muskogee, Oklahoma, wherein the RO denied service connection
for post-traumatic stress disorder.
In September 1999, the veteran claimed service connection for
shrapnel wounds of the right hip, a right shoulder
disability, a broken nose, and for injuries to his teeth.
These claims were denied as not well grounded in a rating
decision of March 2000, and again in December 2001 after the
passage of the Veteran's Claims Assistance Act. The latter
decision also denied service connection for gynecomastia.
In letters of September 2002, December 2004, and May 2005,
the veteran requests readjudication of his service connection
claims. The RO responded in an October 2002 letter
explaining that his claims had already been reconsidered
under the Veteran's Claims Assistance Act and any further
consideration requires new and material evidence. A January
2005 notice letter from the RO reiterated the need for new
and material evidence to re-open a claim and explained the
regulations regarding new and material evidence. In February
2005, VA received a note from a DAV (Disabled American
Veterans) representative indicating the veteran limits his
claim to PTSD.
It appears that the veteran continues to claim that service
connection is warranted for a right hip disability, right
shoulder disability, nose injury, teeth injury, gynecomastia
in the May 2005 letter from Senator Tom Cole's office. The
RO responded explaining that his appeals had been withdrawn
by his representative in February 2005 and thus have not been
readjudicated. The RO must consider the May 2005 letter as a
request to re-open the veteran's various claims for service
connection. These issues are referred back to the RO for
appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran is claiming service connection for post-traumatic
stress disorder due to several in-service stressors. He
reports that during his 18 months at Castle Air Force base in
California he was a member of a team that helped find dead
bodies in three B-52 crashes, which he vividly recalls today.
He contends that in March 1972 he was stationed at Anderson
Air Force base in Guam where he volunteered for Air Rescue
Special Forces. He was part of the Secretary's pool where
anyone who volunteered would serve together without regard to
unit. He flew in UH-1s -- which he remembers to be part of
the 1st and 7th Air Cavalry -- to Ben-Hut or Pla-Cu, with
army men, taking replacements up and bringing back dead and
wounded. The veteran's helicopter crashed in April 1972 at
about 17 degrees Northwest of East Cambodia. In late
September 1972 his helicopter crashed again, at 14 degrees
North of the point where the borders of Cambodia, Laos and
Vietnam meet.
He watched a young native woman become dismembered by a mine
and approached her to save her two unborn twin girls. He
also watched a friend, the door gunner on one of his flights,
get taken by the enemy who beat him then tossed him out over
the side of a mountain. He shot the door gunner then killed
those who beat him. Further information from the veteran as
to the name of his friend, the dates and locations of these
events will assist in VA's efforts to verify these stressors.
Additionally, the veteran contends that he has Prisoner of
War status and was held captive and tortured approximately
from July 3, 1972 through October 1972 in either Laos or
Cambodia. He was caged in bamboo and placed in a hole in the
ground. In early October 1972, he was ordered out and was
tortured having two sharpened sticks shoved under his
nipples, then returned to the cage. One day the cage door
was unlocked and the area was deserted and he managed to walk
12 miles to a village outside Ben-Hut. An aid station there
flew him to Cam Rahn Bay Moore Medical Center. Then he was
flown home to Barksdale, Louisiana - via Japan, Anchorage,
California, and Texas - and discharged.
The evidence of record indicates that the veteran had foreign
service during this time and further development is necessary
to determine the stressors the veteran suffered from. The
veteran's DD-214 indicates 1 year 4 months and 27 days of
foreign service and receipt of the Vietnam Service Medal but
no reference to POW status. The Service medical records show
that he was seen at the 11th U. S. Air Force Hospital in U-
Tapao, Thailand, in November 1970, December 1970 and October
1971 but no records from Cam Rahn Bay More Medical Center.
The veteran's personnel file indicates a foreign assignment
in U-Tapao Airfield, Thailand on October 30, 1970, however,
it does not indicate his whereabouts after this date.
Hospitalization and clinical records of treatment at Cam Rahn
Bay More Medical Center in October 1972 should be retrieved.
38 C.F.R. § 3.159 (c)(3) states that VA will make efforts to
obtain service medical records if relevant to the claim.
Here, the veteran's service medical records are in the claims
file, but do not include such October 1972 hospital records.
Treatment following the torture suffered during his
confinement is material to the veteran's claim. An attempt
to retrieve such records should be made.
The veteran's personnel file is incomplete only indicated the
veteran's assignments for the first two years of his four
years in service. A May 2001 request indicates that only
certain pages of the file were sought from the veteran's
personnel file. The claims file does not show that any
further attempts were made to obtain records from the
veteran's personnel file beyond the May 2001 request. All
pages of the veteran's personnel file must be obtained,
including an updated Air Force Form 7 indicating the
veteran's duties, locations and dates post October 1970. 38
U.S.C. § 5103A(b)(3) requires that VA make attempts to get
federal records "until the records are obtained unless it is
reasonably certain that such records do not exist or that
further efforts to obtain those records would be futile." If
the records are unavailable, VA must notify the veteran of
the identity of the records, the efforts VA made to obtain
the records, a description of any further action VA will take
on the claim, and notice that the veteran is ultimately
responsible for providing the evidence. 38 C.F.R. §
3.159(e)(i)-(iv) (2006). An attempt to retrieve all of these
documents must be made.
An attempt at verification of the veteran's stressors through
the U.S. Army and Joint Services Records Research Center is
also needed before the claim can be adjudicated.
Verification of the B-52 crashes at Castle Air Force base and
the Secretary's pool selection method in effect at Anderson
Air Force base from March to October 1972 and the incidents
resulting therefrom, will aid in the determination of the
veteran's post-traumatic stress disorder's etiology. Any
additional detailed stressors received from the veteran
should also be verified.
Additionally, in the case of a claim for disability
compensation, the assistance provided by the Secretary under
subsection (a) shall include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.
38 U.S.C.A. § 5103A. To properly adjudicate the veteran's
claim, an examination to assess his mental health is
necessary.
Accordingly, the case is REMANDED for the following action:
1. Request information from the veteran to
verify stressors and prisoner of war
status in accordance with M21-1MR, Part
IV, Subpart ii, Chapter 1, Section G.
2. In accordance with M21-1MR, Part IV,
Subpart ii, Chapter 1, Section G;
determine if the veteran is a POW and
was held captive from July 1973 to
October 1973; and associate such
information with the claims file.
3. Obtain the veteran's October 1972
clinical treatment records from the
(Moore or More?) Medical Center in Cam
Rahn Bay, Vietnam. If such records are
not located, an explanation of the
efforts made to retrieve them should be
added to the claims file.
4. Obtain complete copies of the veteran's
official military personnel file, and
specifically request an updated Air
Force Form 7 containing assignments post
October 1970. All material produced by
the requested search should be
incorporated into the record. If no
records are located, a written statement
to that effect should be incorporated
into the claims file.
5. Contact U. S. Army and Joint Services
Records Research Center (JSRRC) and
attempt to independently verify any of
the veteran's stressors with enough
detail to be researchable. Refer to any
Army records relevant to Air Rescue
Special Forces from March to October
1972.
6. Following the above, prepare a report
detailing the nature of any stressor
which is determined to be established by
the record. If no stressor has been
verified, the RO should so state in its
report and associate the report with the
claims file.
7. Then schedule the veteran for a VA
psychiatric examination. The examiner
is to identify all relevant diagnoses.
If PTSD is diagnosed the examiner
should identify all related stressors.
If in-service and post-service
stressors are identified determine if
the veteran's PTSD is at least as
likely as not due to in-service
stressors. The claims folder should be
made available to the examiner for
review in conjunction with the
examination, and the examiner should
acknowledge such review in the
examination report.
8. Then the RO should readjudicate the
issue on appeal and consider all
evidence received since issuance of the
most recent statement of the case. If
the benefit sought on appeal remains
denied, the appellant and
representative should be furnished an
appropriate supplemental statement of
the case and be provided an opportunity
to respond. Thereafter, the case
should be returned to the Board for
further appellate consideration, as
appropriate.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).